886 F.Supp. 858 (CIT. 1995), 93-01-00052, Takashima U.S.A., Inc. v. United States

Docket Nº:Court No. 93-01-00052.
Citation:886 F.Supp. 858
Party Name:TAKASHIMA U.S.A., INC., Plaintiff, v. UNITED STATES, Defendant. Slip Op. No. 95-87.
Case Date:May 09, 1995
Court:Court of International Trade

Page 858

886 F.Supp. 858 (CIT. 1995)

TAKASHIMA U.S.A., INC., Plaintiff,



Slip Op. No. 95-87.

Court No. 93-01-00052.

United States Court of International Trade.

May 9, 1995

Politis, Pollack & Doram, Los Angeles, CA (Elon A. Pollack and John N. Politis), for plaintiff.

Frank W. Hunger, Asst. Atty. Gen. of the U.S., Joseph I. Liebman, Attorney-in-Charge, Intern. Trade Field Office, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, (John J. Mahon), Washington, DC, for defendant.


CARMAN, Judge:

Plaintiff, Takashima U.S.A., Inc., challenges the classification and liquidation of its imported merchandise, plastic sheeting in continuous lengths, consisting of woven polyethylene fabric, laminated on both surfaces with non-transparent polyethylene plastic. Defendant moves to dismiss this action for lack of jurisdiction because, defendant argues, plaintiff commenced this action more than 180 days after the United States Customs Service (Customs) mailed the notices of denial of protests. The United States Court of International Trade (CIT or Court) has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(a) (1988). 1

Page 859


Plaintiff imported the eight entries at issue here between December 14, 1983, and November 6, 1984. The entries were liquidated on various dates in 1984 and plaintiff's protests followed in 1985. For purposes of simplicity, the following chart lists the eight entries, the protest numbers, and the pertinent dates not in dispute:

Date of Entry Entry Number Protest Number Date of Liquidation Date Protest Filed
10"19"84 85"123523 2704"5"000907 11"30"84 02"25"85
12"14"83 84"477733 2704"5"001445 02"03"84 03"28"85
12"14"83 84"477734 2704"5"001446 02"03"84 03"28"85
11"06"84 84"478090 2704"5"001447 03"09"84 03"28"85
02"05"84 84"478471 2704"5"001448 03"16"84 03"28"85
03"07"84 84"479060 2704"5"001456 04"27"84 03"28"85
06"05"84 84"498693 2704"5"001457 07"27"84 03"28"85
05"10"84 84"498287 2704"5"001458 08"03"84 03"28"85

---------- The record is not clear when Customs claims it denied the protests in question, as defendant's papers reflect two different dates for some of the protests: DATE PROTEST DENIED

Protest Number as per Def.'s Mot. to Dismiss as per Def.'s Reply Br
2704"5"000907 08"07"87 08"07"87
2704"5"001445 01"25"88 12"05"88
2704"5"001446 01"25"88 12"05"88
2704"5"001447 01"25"88 12"05"88
2704"5"001448 01"25"88 12"05"88
2704"5"001456 01"24"88 12"05"88
2704"5"001457 01"25"88 12"05"88
2704"5"001458 03"28"86 03"28"86

---------- CONTENTIONS OF THE PARTIES Plaintiff maintains it never received the notices of denial of protests that Customs claims to have sent. In June 1992, plaintiff contends, its records reflected that the protests at issue here were still pending. After contacting Customs concerning the pending protests, plaintiff wrote Customs requesting accelerated disposition of the protests. Plaintiff argues Customs failed to allow or deny the protests within thirty days of plaintiff's request and thus, the protests were deemed denied on December 24, 1992. (Pl.'s Opp'n to Def.'s Mot. to Dismiss (Pl.'s Br.) at 1-2.) See 19 C.F.R. § 174.22(d) (1992). Plaintiff filed a summons commencing this action on January 22, 1993. To support its claim that it did not receive the notices of denial, plaintiff submitted several affidavits which purport to describe the practice of handling incoming mail at Mandel & Grunfeld (M & G) 2 and the maintenance of the law firm's ledger where denied protests were recorded. A former M & G partner stated that after dissolution of M & G, "GDL & S designated two attorneys ... to open all mail received by the firms, and to direct the same to the appropriate recipient in the Page 860 firms." (Florsheim Aff. ¶ 5.) "In the case of all protests (M & G and GDL & S), both denied and approved, it was (and still is) the established practice to deliver the same to Kenneth Rich, GDL & S's Customs Specialist." ( Id.) One of the attorneys responsible for opening the mail affirmed that denied protests were delivered to Mr. Rich who forwarded them to the paralegal assistant for entry in the appropriate summons log book. (Klestadt Aff. pp 2, 4.) Plaintiff produced the affidavit of a clerical assistant employed by GDL & S from November 1985 to October 1987, who stated that after receiving denied protests from Mr. Rich or his assistant, she entered information in the appropriate log book. (Watson Aff. pp 1, 3.) Plaintiff conducted a search of the appropriate M & G logs in New York and Los Angeles and failed to uncover any notation M & G had received the notices of denial. (Pl.'s Br. at 2, 6-7.) Plaintiff argues the non-receipt of the notices of denied protests raises a presumption that the notices were not mailed by Customs. ( Id. at 4 (citation omitted).) Because the "evidence demonstrates that plaintiff did not receive any notices of denial," ( id. at 7), plaintiff concludes, "the burden now shifts to the government to establish by clear and convincing evidence the fact of proper mailing," ( id. at 9). Defendant alleges the protests in this case were denied during the period March 28, 1986, through January 25, 1988, or December 5, 1988. 3 (Def.'s Mot. to Dismiss at 1.) Because this action commenced considerably after the 180-day period provided by statute, defendant argues, "the summons was untimely filed, and this court lacks jurisdiction over the action." ( Id.) Defendant underscores the well-established presumption of regularity enjoyed by government officials in the performance of their lawful duties. (Def.'s Reply Br. at 2 (citations omitted).) Coupled with this presumption, defendant argues, is the evidentiary presumption that "proof of mailing of a notice pursuant to standard office procedures creates a presumption that the notice was received." ( Id. at 3 (citations omitted).) Therefore, defendant reasons, the notices of denial of the protests at issue here are presumed to have been issued and duly mailed and delivered...

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